Commissioner of Police v Ritson (“DVT”)

[2023] NSWSC 108

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Commissioner of Police v Ritson (“DVT”) [2023] NSWSC 108

Hearing dates:

14 February 2023

Date of orders:

14 February 2023

Decision date:

14 February 2023

Jurisdiction:

Common Law

Before:

Dhanji J

Decision:

(1) Pursuant to rr 6.24 and 6.27 of the Uniform Civil Procedures Rules 2005 (NSW) the Privacy Commissioner be joined as a defendant.

(2)   There be no orders as to costs with respect to the motion.

Catchwords:

CIVIL PROCEDURE – notice of motion – application to intervene – Privacy Commissioner to be joined as a defendant – intervention sought in order to make submissions on a discrete issue of statutory construction – joinder application granted – orders made – no order as to costs

Legislation Cited:

Government Information (Public Access) Act 2009 (NSW)

Privacy and Personal Information Protection Act 1998 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Great Eastern Cleaning Service Pty Ltd [1978] 2 NSWLR 278

Levy v Victoria (1997) 189 CLR 579; [1997] HCA 31

Category:

Procedural rulings

Parties:

Commissioner of Police, NSW Police Force (Plaintiff)
Brendan Ritson (“DVT”) (Defendant)

Representation:

Counsel:
J Emmett SC with J E Curtin (Plaintiff)
B Lim with H Ryan (intervenor)

Solicitors:
Crown Solicitor’s Office (Plaintiff)
R Wilkins, Information and Privacy Commission NSW (intervenor)

File Number(s):

2022/237160

Publication restriction:

Nil

EXTEMPORE JUDGMENT (REVISED)

1. HIS HONOUR: By notice of motion dated 6 February 2023 the Privacy Commissioner seeks leave to intervene in these proceedings. In support she relies on the affidavit of Rhys Wilkins affirmed 6 February 2023.

2. The Privacy Commissioner seeks to intervene in order to make submissions on a discrete issue of statutory construction, that is whether, as the plaintiff contends, the combined effect of s 20(5) of the Privacy and Personal Information Protection Act 1998 (NSW) (the PPIP Act) and s 60(1)(a) of the Government Information (Public Access) Act 2009 (NSW) (the GIPA Act) is to allow a public sector agency to refuse to deal with a request for personal information made under the PPIP Act on the ground that dealing with the request would require an unreasonable and substantial diversion of the agency's resources.

3. The Court has the power to grant the Privacy Commissioner, that is a non-party, leave to intervene in the proceedings by ordering that she be joined as a defendant under rr 6.24 and 6.27 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR): see Re Great Eastern Cleaning Service Pty Ltd [1978] 2 NSWLR 278.

4. Joinder will be appropriate where it is necessary to the determination of all matters in dispute. This may be the case where the proceeding has wider implications than the immediate rights of the parties or relatedly where, the parties to the particular proceeding may not present fully the submissions on a particular issue, being submissions which the Court should have to assist it to reach a correct determination: see Levy v Victoria (1997) 189 CLR 579 at 603; [1997] HCA 31.

5. In this matter, the plaintiff does not oppose the application for joinder. There is, in this case, a significant advantage to the Court in the Privacy Commissioner being joined in order to facilitate the proper determination of what appears to be, at this stage, an important question of statutory construction. It is pointed out on behalf of the Privacy Commissioner that it is a question that has wider implications. More particularly in the present circumstances, in the absence of the Privacy Commissioner there will be no contradictor with respect to the submissions made on behalf of the plaintiff.

6. It is important to note that the Privacy Commissioner's statutory role and her involvement in the Appeal Panel proceedings make her an appropriate party to provide submissions with respect to the issue of statutory construction. I note that the Privacy Commissioner is an independent statutory officer appointed by the Governor: see PPIP Act, ss 34 and 35E. The general functions of the Privacy Commissioner are set out in s 36 of the PPIP Act. I also note that the PPIP Act entitles the Privacy Commissioner to be involved in internal reviews of the conduct of public sector agencies and in administrative reviews before the NSW Civil and Administrative Tribunal of public sector agencies' conduct: see PPIP Act, ss 53, 54 and 55.

7. It is noted that the Privacy Commissioner exercised her right of participation under s 55(6) of the PPIP Act in respect of the Appeal Panel proceedings from which the plaintiff seeks leave to appeal. Submissions were made on several grounds of appeal with respect to the proper construction of the PPIP Act, including in opposition to the plaintiff's submission that s 60(1)(a) of the GIPA Act was "imported" in the PPIP Act by operation of s 20(5) of the PPIP Act.

8. The amended summons now raises the same question of construction of s 20(5) of the PPIP Act in the context of the plaintiff's claim that she was denied procedural fairness and the plaintiff should not have been ordered to perform IPP 7 (as contained in s 14 of the PPIP Act) by providing the defendant with access to all of his personal information.

9. In the circumstances, I am of the view that the Court is likely to be assisted by the Privacy Commissioner’s intervention. In these circumstances, I make the following orders:

1. Pursuant to rr 6.24 and 6.27 of the Uniform Civil Procedures Rules 2005 (NSW) the Privacy Commissioner be joined as a defendant.

2. There be no orders as to costs with respect to the motion.

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Amendments

15 March 2023 - Remove "(No 2)" in case citation

Decision last updated: 15 March 2023